Johnson S/o Thomas v. U.P Krishnankutty, Shajil, and National Insurance Company Limited

1 MACA No.2477 of 2012 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **MONDAY, THE 1[ST] DAY OF NOVEMBER 2021 / 10TH KARTHIKA, 1943 MACA NO. 2477 OF 2012** **AGAINST THE ORDER/JUDGMENT IN OPMV 1119/2008 OF MOTOR ACCIDENT CLAIMS TRIBUNAL , IRINJALAKUDA, THRISSUR APPELLANT/S:** JOHNSON S/O.THOMAS, RESIDING AT THARAKAN HOUSE, NENMANIKKARA, P.O.PUDUKKAD, THRISSUR DISTRICT. BY ADVS. SRI.T.C.SURESH MENON SRI.P.S.APPU SRI.A.R.NIMOD ## **RESPONDENT/S:** 1 U.P KRISHNANKUTTY RESIDING AT UTTOLY HOUSE, P.O.AMBALLUR, THRISSUR DISTRICT - 680 302. 2 SHAJIL, S/O.KRISHNANKUTTY, RESIDING AT KIZHAKKEKARAPUTHEN VEEDU DHONIKUNDU, AGALI, PALAKKAD DISTRICT, PIN 678 581. 3 NATIONAL INSURANCE COMANY LIMITED, MUNICIPAL SHOPPING COMPLEX NORTH PARAVOOR, ERNAKULAM, PIN 683 513. BY ADVS. SRI.LAL K.JOSEPH SRI.V.S.SHIRAZ BAVA THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 01.11.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: 2 MACA No.2477 of 2012 ## **C.S.DIAS, J. ====================== MACA No.2477 of 2012** ## **====================== Dated this the 1[st] day of November, 2021.** ## **JUDGMENT** The appellant was the petitioner in OP(MV) 1119/2008 on the file of the Motor Accidents Claims Tribunal, Irinjalakkuda. The respondents in the appeal were the respondents before the Tribunal. 2. The appellant had filed the claim petition under Section 166 of the Motor Vehicles Act, 1988, claiming compensation on account of the injuries that he sustained in an accident on 22.7.2008. It was his case that, while he was travelling on his motor cycle bearing registration No.KL-8/AH 4889, on the above said date, through Amballur-Thrissur public road, when he reached Thalore 3 MACA No.2477 of 2012 Junction, a tipper lorry bearing registration No.KL-7/G 9797 (lorry) driven by the second respondent in a negligent manner, hit the motor cycle. The appellant was thrown on the road and he sustained head injuries and fracture of his nasal bone. He was treated at the Elite Mission Hospital, Koorkanchery for a period of 9 days. The appellant was a construction worker and earning a monthly income of Rs.4,000/-. Hence, the appellant claimed a compensation of Rs.2,99,000/- from the respondents. 3. The respondents 1 and 2 did not contest the proceedings and were set ex parte. 4. The third respondent had filed a written statement admitting that the lorry had a valid insurance coverage. However, it was contended that the accident occurred due to the negligence of the appellant. It was also stated that the appellant did not wear a helmet. 4 MACA No.2477 of 2012 Therefore, there was non-observation of protective measures. The third respondent disputed the age, income and occupation of the appellant. 5. The appellant marked Exts A1 to A8 in evidence. The respondents did not let in any evidence. 6. The Tribunal, after analysing the pleadings and materials on record, allowed the claim petition, in part, by permitting the appellant to realise from the third respondent an amount of Rs.1,21,878/- with interest at the rate of 7.5% per annum from the date of petition till the date of realisation and proportionate cost. However, the Tribunal deducted 10% of the compensation amount on the ground that the appellant did not wear his protective headgear. Therefore, the Tribunal permitted the appellant to realise only an amount of Rs.1,09,000/- . 7. Aggrieved by the deduction of 10% compensation on the ground that the appellant did not 5 MACA No.2477 of 2012 wear protective headgear and dissatisfied with the quantum of compensation awarded by the Tribunal, the petitioner is in the appeal. 8. Heard; Sri.T.C Suresh Menon, the learned counsel appearing for the appellant/petitioner and Sri.Lal K Joseph, the learned counsel appearing for the third respondent-insurer. 9. The questions that arise for consideration in the appeal are: (i) whether the deduction of 10% of the compensation amount on the ground that the appellant did not wear protective headgear is sustainable in law, and (ii) whether the quantum of compensation awarded by the Tribunal is reasonable and just. ## **Question No.(i)** 10. Ext A5 charge-sheet filed by the Puthukad Police in crime No.411/2008 proves that the accident occurred due to the negligence of the second respondent. The 6 MACA No.2477 of 2012 respondents have not let in any evidence to discredit the charge-sheet as laid down by this Court in **New India Assurance Co. Ltd v. Pazhaniammal – [(2011) (3)KLT 648].** Therefore, the findings in Ext A5 chargesheet is to be taken on its face value. In the above circumstances, the non-wearing of the helmet by the appellant was inconsequential so far as the accident is concerned. What needs to be proved in a claim under Sec.166 of the Motor Vehicles Act, 1988, is negligence on the part of the driver of the offending vehicle. 11. In the instant case, the appellant has satisfactorily proved negligence on the part of the second respondent. Therefore, I set aside the deducting of 10% from the compensation amount by the Tribunal, on the ground that the appellant did not wear a helmet. Accordingly, I hold that the appellant is entitled to the entire amount of compensation awarded by the Tribunal. 7 MACA No.2477 of 2012 ## **Question No.(ii)** ## **Notional income** 12. The appellant had claimed that he was a construction worker by profession and earning a monthly income of Rs.4,000/-. However, the Tribunal fixed the notional monthly income of the appellant at Rs.3,000/-. 13. The Hon'ble Supreme Court in **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited [(2011) 13 SCC** **236]** has fixed the notional income of a coolie worker in the year 2004 at Rs.4,500/- per month. 14. Following the yardstick in the aforecited decision and considering the fact that the accident occurred in the year 2008 and the appellant had claimed that he was earning a monthly income of Rs.4,000/-, I refix the monthly income of the appellant at Rs.4,000/- as 8 MACA No.2477 of 2012 claimed in the claim petition. ## **Loss of earnings** 15. The Tribunal has found that the appellant was indisposed for a period of three months due to the injuries sustained in the accident. I confirm the said findings. 16. In view of the refixation of the notional monthly income of the appellant at Rs.4,000/-, I enhance the compensation under the head 'loss of earnings' at **Rs.12,000/-,** instead of Rs.9,000/- awarded by the Tribunal. ## **Multiplier** 17. Admittedly, the appellant was aged 50 years at the time of the accident. In the light of the law laid down in **Sarla Verma v. Delhi Transport Corporation** **[(2009) 6 SCC 121]** , the relevant multiplier is '13'. 9 MACA No.2477 of 2012 ## **Loss due to disability** 18. The appellant had produced Ext A7 disability certificate, which states that the appellant has memory impairment, non-healing of the wound in the scalp and he is suffering from chronic post-traumatic headache. The Assistant Professor of Neurology, Government Medical College, Thrissur has certified that the appellant has a permanent disability of 8%. 19. Considering the fact that the appellant was a construction worker and that he was sustained serious injuries in the accident, I do not find any reason to disagree with the assessment in Ext.A7 that the appellant has a functional disability of 8%. 20. I adopt the above course following the ratio in **Raj Kumar v. Ajay Kumar [2011 (1) KLT 620(SC)],** wherein the Hon'ble Supreme Court has categorically held that if the Tribunal is not satisfied with the disability 10 MACA No.2477 of 2012 certificate produced before it, it is imperative for the Tribunal to refer the claimant to a injured duly constituted Medical Board. 21. In the present case, instead of referring the appellant to a duly constituted Medical Board, the Tribunal has simply discarded Ext A7 disability certificate, which is erroneous and wrong. Therefore, I hold that the appellant has a functional disability of 8% as certified in Ext A7. 22. Following the above mentioned parameters, viz., the monthly income of the appellant at Rs.4,000/-, the multiplier at '13' and his functional disability at 8%, I award compensation for loss due to disability at **Rs.49,920/-** . ## **Bystander expenses** 23. It is seen that the appellant was treated as inpatient for a period of 9 days. However, the Tribunal 11 MACA No.2477 of 2012 has awarded only an amount of Rs.100/- per day for a period of 9 days, i.e., an amount of Rs.900/-, which according to me is on the lower side. 24. Considering the fact that the accident occurred in the year 2008, I award an amount of Rs.400/- per day towards bystander expenses for a period of 9 days, which comes to an amount of **Rs.3,600/-** instead of Rs.900/awarded by the Tribunal. ## **Other heads of compensation** 25. With respect to other heads of compensation, I find that the Tribunal has awarded reasonable and just compensation. In the result, the appeal is allowed, in part, by enhancing the compensation by a total amount of **Rs.68,498/-** (Rupees Sixty Eight Thousand Four Hundred and Ninety Eight only) (i.e. Rs.12,878/- deducted towards 10% contributory negligence and an amount of 12 MACA No.2477 of 2012 Rs.55,620/- (viz., Rs.3,000/- towards loss of earnings, Rs.2,700/- towards bystander expenses and Rs.49,920/towards compensation for loss due to disability) with interest at the rate of 7.5% per annum on Rs.68,498/from the date of the claim petition till the date of deposit, ordered to deposit the amount of **Rs.68,498/-** with interest and cost before the Tribunal within a period of sixty days from the date of receipt of a certified copy of the judgment. The Tribunal shall, immediately on the compensation being deposited, disburse the same to the appellant, in accordance with law. sd/- sks/1.11.2021 **C.S.DIAS, JUDGE**